occupiers liability

Question 1

occupier

Answer 1

person in charge of the property

Question 2

visitor

Answer 2

someone who has permission to enter a premmises

Question 3

reasonable

Answer 3

what the average person would do

Question 4

duty of care

Answer 4

responsibility legally owned to another person.

Question 4

Liability

Answer 4

reasonable by law

Question 5

Background

Answer 5

Occupiers of premies owes a duty to keep visitor safe whilst his her are on their premises.

-this area off tort law

Question 6

statutes of when someones breaks thereduty of care to theirc

Answer 6

under Secton 1(2) of the Occupiers liability act 1957

Question 7

section 1(2) of theocupiers liability act

Answer 7

It’s states the common law rules apply
- who can be considered on occupier -:so,women who has some degree of control over premises.

This means that the occupier need not necessarily be the owner of the land or premesies but may instead be a tenant or an independent contractor employed to carry out work. It allows for more than one occupier at the same time

Question 8

Wheat v E lacon and Co 1966

Answer 8

Legal principle - the occupier is the person in control of the property
Can be more than 1 occupier

Question 9

Harris v Birkenhead Corporation 1976

Answer 9

Legal principle - occupier is the person in control of the premesies

Question 10

In the court room

Answer 10

Decision of who is in control of the premesies may be influenced by whose insurance policy covers premises may be influenced by whose insurance policy covers the premesies and is able to meet the claim.

Question 11

Bailey v armes

Answer 11

D loved in a flat above roof. Allowed their son to play on roof but told him to not tak anyone else he took his friend and he was injured when he fell of the roof. Courts sed neither supermarket or defendant were liable

Legal principle - there is no claim if co trol cannot be established

Question 12

Wheat v E Lacon and co 4 categories of occupier

Answer 12

• if landlord lets premises than the tenant will be the occupier
• if a landlord who lets part of the building retains certain areas like entry halls then the landlord is an occupier in respect of theese areas
• if an owner licenses (allows) a person to use remedies but reserves the right of entry than the owner remains the occupier
• if contractors are employed to carry out work, owner will generally remain the occupier however can be circumstances where contractor could be occupier.

Question 13

Premises

Answer 13

Occupiers of premises owe a duty

There is no definition of ‘premesies’ although under section 1(3) of the occupiers act it states that the term includes not only land and buildings but also fixed land and vehicles and aircraft

• not as simple as saying premises is just a house

Question 14

Occupiers Liability Act 1957 - visitors

Answer 14

Related to those who are lawful visitors and who have been granted permission to enter

Sets out duty of care owed to visitors

Person will be classed as a visitor if they have permission to enter. Permission may be express or implied.

Question 15

Expressed permission

Answer 15

Actively gained permission to be in a place. For example if he or she has been asked.

Persmission can be withdrawn. Person must be given a reasonable amount of time to leave the premises before they become a trespasser

• expressed permission can be withdrawn

Question 16

Implied permission

Answer 16

Sometimes a prison may not have express permission to be in a place but still classed as a visitor if the courts decide that he or she had implied permission to be there.

Permission can be implied in a number of situations. Police, fire brigrafe, those who need to gain access to read gas, electricity and water meters. Sales people are all taken to have permission and are classed as visitors. In addition court may also imply permission in certain circumstances depending on the facts of the case.

Question 17

Lowery v walker

Answer 17

Villagers I. Habit of taking short cuts across a field to reach a railway station.

Without a warning placed a horse in the field and it attacked the d

Court argued the villagers were lawful and owed a duty by the d. D new about short cut and dint do anything

Question 18

Section 2(2) of the occupiers liability act Defined the common duty of care as

Answer 18

Visitor will be reasonably safe in usuing the remedies for the purpose for which he is invited or permitted by occupier to be there.

The 19957 act states that this duty applies only while visitors are using the premesues for the purpose for which they are invited or permitted to be there.

Question 19

Scrutton LJ summed this up in the case The Calgarth 1927

Answer 19

When you invite a person into your house to use the stairs you do not invite him to slide down the banisters

Means that if the visitor does something they are not invited to do the occupier owes no duty towards him or her under the 1957 act.

Question 20

Laverton v Kiapasha Takeaway supreme

Answer 20

D owed a small takeaway. Fitted slip resistant tiles used a mob and bucket to mop the floor if it rained. When claimant visited shop it was very busy and it had rained. She slipped and broke her ankle.

COA decided that shop had taken reasonable care to ensure customers were safe. Not liable as they did not have to make shop completely safe.

Legal principle - no claim of reasonable care has been taken

Question 21

Dean and chapter of Rochester Cathedral V Debell 2016

Answer 21

Claimant was injured when he tripped and fell over a small lump of concrete.

The court of appeal held
-tripping, slipping and falling are everyday occurrences’. occupier as big as a cathedral could not possibly ensure all the surroundings were safe. Obligation is on occupier to make the grounds reasonably safe not guaranteed safe.

2. risk is reasonably foreseeable only when there is a real source of danger which is reasonably foreseeable only when there is a real source of danger which is reasonable person would recognise as obliging the occupier to make remedial action.

legal principle - occupier has to make the preemies reasonably safe, not guaranteed safety.

Question 22

cole v David-Gilbert,the royal British Legion and others (2007)

Answer 22

claimant was injured when she trapped her foot in a hole, where a maypole was in the past. British Legion had failed to properly fill the hole she won first but court of appeal held that since her injury took place nearly 2 years after maypole had been in place- hole must of been opened up again by a stranger

. legal principle- the duty does not cover any accidents

Question 23

duty to children

Answer 23

the 1957 act gives guidelines as how the duty of care operates in certain situations or towards CERTAIN CATEGORIES OF PEOPLE

Question 24

Section 2(3)(a) of the ocuppier liability act 1957 states that an occupier

Answer 24

must be prepared for children to be less careful than adults, so the premises must be reasonably safe for a child. The standard of care is measured subjectively according to the age of the child occupier should guard against my allurement or attraction which places the child at risk.

Question 25

Glasgow Corporation V Taylor (1922)

Answer 25

7 year old ate poisonous berries in a botanical garden and died. occupier was liable legal principle- occupier should be aware that allurement may place children at risk.

Question 26

Phipps v Rochester Corporation 1922

Answer 26

5 year old child was injured when he fell down a trench dug by the council where children frequently play. legal principle - occupier will not be liable if parents should have been supervising the children - if parents are around they are responsible for their children.

Question 27

Jolley v London Borough of Sutton (2000)

Answer 27

council has failed to move an abandoned boat for 2 years. children regularly played. When 2 boys age 14, jacked up the boat to repair it the boat fell on one injuring him seriously. they where first successful in compensation in the high court however in court of appeal decided that hwile the boat wasan allurment the action taken by teh boys and the specifictypeofinjuury wasnot foreseeable. - the standard of care for children is higher as there less predictable

Question 28

person exercising a calling

Answer 28

occupier liability act 1957 -covers the duty owed by the occupier to those excersing a calling

Question 29

Section 2 (3)(b) stated what

Answer 29

thoose carrying out a trade are therefore expected to takemasures to avoid the risks associated with it.for example an occupier could epxect an electrician to take precautions to avoid being electrocuted.

Question 30

Roles v Nathan 1963

Answer 30

legal principle- occupier will not be liable for the harm to trades people if the trades people have not guaranteed against known risks.

Question 31

section 2 (4) of the occupiers liability act 1957 states that

Answer 31

the occupier is not liable for damages caused toa visitor by a danger due to the faulty execution of any work or constuction.maintamce or repair by an independent contractor employed by the occupier. in order for this to be the case the occupier must prove three requirements - it must have been reasonable for the occupier to have entrusted the work to the independent contractor - Haseldine v Daw and Son Ltd 1941 - the contractor hired must be competent to carry out the task. n- Bottomley v Toddmorden Cricket Club (2003) - if possible the occupier must inspect teh work - Woodward v Major of Hastings 1945

Question 32

independant contractors

Answer 32

could be possible for the occupier to avoid liability for the loss or injuries suffered by his visitors when teh cause of damamge is the negligance of an idependant contractor.

Question 33

Hazeldine Daw and son

Answer 33

The occupier was not liable as it was reasonable to give the work to a specialist firm.

Question 34

Bottonley v Todmodern Cricket Club. (2003)

Answer 34

Firework display st cricket club gone wrong someone injured. People who had fireworks had no insurance Legal principle - occupier may still be liable for negligence of workman if they are competent.

Question 35

Woodward v the mayor of Hastings 1945

Answer 35

Icy roads legal principle - occupier must check that work had been carried out properly

Question 36

Defence warnings Section 2(4) of the occupiers liability act

Answer 36

Where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe What amounts to a sufficient warning will depend on the facts in each case If a warning is not sufficient, the occupier remains liable under the 1957 act. However, an occupier does not have to warn against danger Rae v mars uk Ltd. 1990 Staples v west Dorset district council 1995

Question 39

Rae v mars uk Ltd. 1990

Answer 39

The premises was a deep pit inside a shed so a warning by itself is insufficient Staples v west Dorset district council 1995 - the danger of wet algae sign on a high wall should have been obvious no further sign was needed

Question 40

Defences fur exclusion clauses

Answer 40

S2(1) OLA 1957 - an occupier is able to restrict, modify or exclude his duty by agreement or otherwise Meaning than an occupier can reduce their liability by placing clauses in their warning

Question 41

Defences for contributory negligence

Answer 41

This is a partial defence and and may reduce the risk of damages paid. Of it can be shown that the claimant has contributed to their own harm or injury Consent - this is a complete defence and can lead to the claimant being found not liable for the harm or injury Consent

Question 42

Contributory negligence

Answer 42

This is a partial defence and and may reduce the risk of damages paid. Of it can be shown that the claimant has contributed to their own harm or injury Consent - this is a complete defence and can lead to the claimant being found not liable for the harm or injury

Question 43

Remedies

Answer 43

If there is a liability, then the remedy will be to claim damages for any person injury or property damage

Question 44

Exam prep

Answer 44

1. Occupier 2. Premises 3. Visitor 4. Common duty of care 5. Is there any defence . 6. remedy

Question 45

Occupier liability act 1984

Answer 45

Important to note that the term premises and occupier mean the same under this act same as occupiers liability act 1957 A tresspasser is not lawful visitor and therefore excluded under occupiers liability act 1957

Question 46

Addie v dumbreck 1929

Answer 46

D owed view park colliery which was situated in a field adjacent to a road. There was a fence around wiled although had gaps people often used for a shortcut to the railway station. Children used it as a playground as well. One child died getting stuck on fence Legal principle - no duty of care was owed to trespassers to ensure they were safe when coming onto the ground. On,y duty was not to inflict harm wilfully.

Question 47

British railway board v Herrington 1972

Answer 47

Child 6 was injured badly when he trespassed on an electrified railway line. Defendant knew children commonly play on the field. Fence was damaged not the electric line railway and d didn’t do anything about it. Principle - d was liable morally if a company where to build something they should take measures to protect the children when knowing they play

Question 48

What is a trespasser

Answer 48

So son who enters land or premises without permission. His or her presence must either be uknowm to tge occupier or if known about be objected about A person can enter land or premises as a visitor and then become a trespasser. For example, if the occupier told a visitor to remain downstairs, and then went up

Question 49

Duty to trespassers

Answer 49

In order for a successful claim under occupiers liability act 1984 the claimant must overcome two hurdles 1 - the claim must

Question 50

key elemenst to pove occupier owes a duty of care

Answer 50

An occupier to a premises owes a duty to another (not being his visitor if . he is aware of the danfger or has reaosnable grounds to beleive that it exists . he knows or has reaosnable grounds to beleive that the other is in the vicinity of the dnager concerened or that he may come into the vicinty of vthe danger and . the risk is one agsinat which, in all circumstances of the case, he may reasonably be expected to offer the other some protection the claimant must show all three provisions if they cannot do this then the occupier owes no duty to them and it fails

Question 51

section 1 (4) of the occupiers liability act

Answer 51

to take such care as ut reaosnable in all the circumstances of the case to see th etresspasser does not suffer injury on the premesies by reason of the dnager concerend this is a question in all cases the courts will consider such thinga s teh liklehood of harm, the potential seriousness of any injury and how practicaln it was to take precautions against usch harm occuring

Question 52

difference in both acts

Answer 52

1957v act - lawful vistyors using the premesies for the purpose they are invited or permitted by the occupier to be there 1984 - to take such care as is reaosnable to see that then non-visitor is not injured on the premsies by the danger the concern unlike the 1957 act the occupiers liability act 1984 does not cover damage to property. an occupier will be liable for person injury's. this cats appears to have given a right to claim compensation to trespassers when they have been injured while trespassing, however there are a number of restrictions

Question 53

ractliff v mcconnell

Answer 53

occupier will not be held liable if the adult trespasser is injured by obvious danger

Question 54

donoghue v folkstone properties 2003

Answer 54

incident happenon sea at midnighty and a HGIGH TDIE THE GRID PILE OWULD HAVE BEEN VISBLE IF THEIR WAS LOW TIDE HELD - time of day or year will be relevant in deciding if the occupier has a duty of cae

Question 55

tomlinson v congleton borough council

Answer 55

occupier does not haveto spend a lot of money ro make premeises safe from obvious danger

Question 56

higgs v foster

Answer 56

occupier will not be liable if they have no reason to suspect them

Question 57

rhind v asrbury water park 2004

Answer 57

legal principle - occupier qill not be liable if they are unaware of teh danger

Question 58

keown v Coventry healthcare NHS trust

Answer 58

legal principle - court maytake a a smialr stance in child cases to asult cases as if not it will open a floodgate of cases

Question 59

under section 1(5) of the occupiers liability act 1984 the duty may be discharged by

Answer 59

taking such steops as a reasonable in all the circumstannces of the case to give a warning of the danger ocncerend or do disencourage indivduals from inncuring the risk this a wanring sign may suuice, but only if it is clera neoughj so that the risk is obvious to the tresspasser

Question 60

westwood v post office 1973

Answer 60

key case under section1 (5) of the occupoiers liability act 1984 wanring on teh door syain do not enmeter the door was unlocked - defendants ere not liable as the notice was enogh for adult tosee held - warning signs shpulf b eneough for an adult

Question 61

sectin 1 (6) occupiers liabiity cat 1984

Answer 61

no duty is owed to any perosn in repsect of risk willingly accepted as his by that perosn an occupier will nol be liable for injury sustained by a tresspasser if that tresspasser has willingly accepted the risk is occuring

Question 62

defences for contributory negligence

Answer 62

occupiers liability act 1984 makes no specific mention of contributiory negligence however it is clear that judges will accept the dfeencel. which works in the same way thta it does for ordinary negligfance

Question 63

remedies

Answer 63

sucessful claimants can claim for damages fir death and perosnal injury sections (8) ocupiers liability act 1984 cannot claim for loss to property